State ex Inf. McKittrick v. Murphy

• Decision Date: 28 February 1941
• Docket Number: 37454
• Parties: State of Missouri upon the information of Roy McKittrick, Attorney General, Relator, v. Andrew J. Murphy, Sr., Edward C. Crow and Harry P. Drisler, Members of the Unemployment Compensation Commission of Missouri, and the Unemployment Compensation Commission of Missouri
• Court: Missouri Supreme Court

148 S.W.2d 527

347 Mo. 484

State of Missouri upon the information of Roy McKittrick, Attorney General, Relator, v. Andrew J. Murphy, Sr., Edward C. Crow and Harry P. Drisler, Members of the Unemployment Compensation Commission of Missouri, and the Unemployment Compensation Commission of Missouri

No. 37454

Supreme Court of Missouri

February 28, 1941

Ouster of respondents and a fine of one dollar and costs ordered.

Roy McKittrick, Attorney General, and J. E. Taylor Assistant Attorney General, for relator.

(1) Quo warranto is a proper remedy to prevent the members of the Unemployment Compensation Commission from removing its office and headquarters from the seat of government at Jefferson City, Missouri. Sec. 1618, R. S 1929; 51 C. J., sec. 10, p. 314; Cochran v McCleary, 22 Iowa 75; State ex rel. Allen v Dawson, 284 Mo. 434, 224 S.W. 824; State ex inf. Walsh v. Thatcher, 340 Mo. 865, 102 S.W.2d 938; High on Extraordinary Remedies (3 Ed.), p. 557; Arts. IV, V, Secs. 56, 1, Mo. Const.; Sec. 4 (a), Unemployment Comp. Laws, Laws 1939, p. 926; State ex inf. Crow v. Fleming, 147 Mo. 1, 44 S.W. 758; 23 Am. & Eng. Encyc. of Law (2 Ed.), p. 639, sec. (c), pp. 640-641, and p. 644, sec. (8); State ex inf. Walker v. Equitable Loan & Inv. Co., 142 Mo. 341, 41 S.W. 916; Orchard v. Board of Commrs. of Sierra County, 76 P.2d 41; Poole v. Dallas County Levee Dist. No. 9, 128 S.W.2d 502; State ex rel. Harrington v. Pompano, 188 So. 610. (2) Under the provisions of Section 56 of Article IV, and Section 1 of Article V of the Constitution of Missouri, the office and headquarters of the Unemployment Compensation and the public records, books and papers pertaining thereto must be kept and maintained at the seat of government in the City of Jefferson. Secs. 56, 1, Arts. IV, V, Mo. Const.; State ex rel. McKinley Pub. Co. v. Hackmann, 314 Mo. 33, 282 S.W. 1010; Bush v. State Highway Comm., 329 Mo. 843, 46 S.W.2d 854; Murphy v. Hurlbut Undertaking & Embalming Co., 142 S.W.2d 449; 59 C. J., sec. 41, p. 76. (3) Under the provisions of Section 4(a) of the Unemployment Compensation Law (Laws 1939, p. 926), the office of the Unemployment Compensation Commission must be maintained in the City of Jefferson. Sec. 4(a), Unemployment Comp. Law, Laws 1939, p. 926; Lamar Township v. Lamar, 261 Mo. 189, 169 S.W. 12; Brown v. Patterson, 224 Mo. 658, 124 S.W. 1; Joplin Supply Co. v. Smith, 182 Mo.App. 212, 167 S.W. 649; Artophone Corp. v. Coale, 133 S.W.2d 343. (4) If Section 4(a) of the Unemployment Compensation Law should be construed to authorize the Unemployment Compensation Commission to remove its office from Jefferson City, it would be unconstitutional and void. Gist v. Construction Co., 224 Mo. 388, 123 S.W. 892; Sec. 28, Art. IV, Mo. Const.; State v. Sloan, 258 Mo. 314, 167 S.W. 500; Fidelity Adjustment Co. v. Cook, 339 Mo. 45, 95 S.W.2d 1162.

Edward C. Crow and Harry G. Waltner, Jr., for respondents.

(1) A demurrer is a legally proper way to determine whether or not an ex officio information in quo warranto charging usurpation of a franchise and setting forth in detail the facts constituting such usurpation states a cause of action. State ex rel. v. Grimm, 220 Mo. 483; State ex rel. v. Railroad, 240 Mo. 48. (2) The information herein does not challenge the power of the Commission to make contract for use of a building as a central office. There is and can be no challenge of respondents' claim that it is the duty of respondents under the Missouri statutes to procure for the Commission a suitable central office. The whole claim is, the authority of the Commission is wrongly exercised in locating the office and therefore the Commission is merely charged with errors of law in the construction of a statute. Error of law in construction of a statute by an officer in the performance of duties of his office is no basis for judgment against respondents in a quo warranto proceeding. Quo warranto proceeding is not a writ of correction and review. Quo warranto is not a proper remedy. State ex inf. Walsh v. Thatcher, 102 S.W.2d 937; State ex rel. Adams v. Lee, 171 So. 333, 109 A. L. R. 319; Attorney General v. Barstow, 4 Wis. 773; State ex rel. v. Fleming, 158 Mo. 558, 59 S.W. 118; People ex rel. v. Whitcomb, 55 Ill. 72. (3) The original Unemployment Compensation Act of Missouri imposed the duty on respondents and gave respondents full power to lease a building anywhere in the State of Missouri to be used as a central office of respondents. Sec. 5 of the original Unemployment Compensation Act of 1937, Laws 1937, p. 580; Amended Unemployment Compensation Act, Sec. 5, Laws 1939, p. 895; Amended Unemployment Compensation Act of Missouri, Secs. 4 (a) 5, Laws 1939, pp. 895, 926; Laws 1939, p. 119; Laws 1937, p. 104.

OPINION

Hays, J.

Original action in quo warranto against the Unemployment Compensation Commission of Missouri, hereinafter referred to as the commission, and the individual members thereof. To the information, filed by the Attorney General ex officio, the respondents have jointly demurred upon the ground, among others, that it does not state facts sufficient to entitle relator to the relief sought. For the purpose of ruling the demurrer, all of the facts well pleaded in the information must be taken as true. Hence we summarize the material allegations of that pleading.

The commission is a subordinate branch of the executive department of the State government. As such it is charged with the administration of the Unemployment Compensation Act of 1937 and acts amendatory thereto. [Laws of Mo., 1937, p. 574 et seq.; Laws of Mo., 1939, p. 887 et seq.]

Immediately after the original act went into effect, the commission set up its central office at Jefferson City, Missouri. This was at first located in the State Capitol Building, but was later removed to a building which had formerly been used as a shoe factory. From time to time the commission entered into negotiations with the Jefferson City Chamber of Commerce and with the municipal government of that city, looking toward the erection of a suitable fireproof building for the commission's permanent headquarters. It will be unnecessary to trace in detail the course of these negotiations. They culminated in the authorization by the city of a $ 200,000 bond issue, the proceeds of which might be used to erect the building. In March, 1940, the city made a formal proposal to the commission to the effect that it would erect a fireproof building with 40,000 sq. ft. of floor space satisfactory to the commission, and would lease the same to the commission at an annual rental of one dollar for a term of two years, "with the privilege of renewal for a like period, and subject to cancellation by the commission on thirty days' notice after one year's occupancy under the original lease or renewal thereof."

For a considerable time respondents, in interviews, news releases and otherwise, have asserted the right to remove their headquarters from Jefferson City. They invited other cities to submit proposals for the erection and leasing of office buildings and proposals were actually received from Carthage, Sedalia, Hannibal, Columbia, Moberly, and elsewhere. Thereafter in June, 1940, the commission passed a resolution declaring that "the five most desirable propositions have been submitted by the cities of Carthage, Sedalia, Hannibal, Jefferson City and Moberly." It also declared that "the proposal made by Jefferson City, Missouri, is unsatisfactory for the reason that proposals submitted by several other cities are, in the opinion of the commission, more desirable and advantageous to the agency." On the same day the commission passed another resolution accepting the proposal made by Sedalia. In that proposal the city of Sedalia offered to construct and furnish a modern fireproof office building with adequate space and to lease the same to the commission for ten years at an annual rental of one dollar, with the privilege of cancellation after the end of the first year.

The relator contends that in the actions above set out the respondents have usurped a franchise not given to them by law, to-wit: the power to remove the headquarters of the commission from Jefferson City to some other point in the State. This action is alleged to be outside of and beyond the powers conferred upon the commission by Sec. 4a of the Unemployment Compensation Act of 1939, supra, p. 926. It is also alleged by the relator that if the last-cited statutory section be construed so as to give the commission the power it claims, it would be, as so construed, unconstitutional for the following reasons: (1) The Constitution, so relator claims, requires the offices of all branches of the executive department, of which respondent commission is said to be one, to be located at the seat of government in Jefferson City, Cf. Const. of Mo., Art. IV, Sec. 56, Art. V, Sec. 1; (2) Relator claims that if the act be so construed, its provisions would not only be broader than the title of the original bill, as passed by the Legislature, but would directly contravene the title, and hence that the portion of the statute construed to grant such power would be void because of the violation of Sec. 28, Art. IV of the Constitution.

Respondents contend that the information does not state facts sufficient to entitle relator to any relief available in a quo warranto proceeding. Assuming all of the facts in the information to be true and assuming, for the purpose of argument only, that the commission erred in construing the Act of 1939 as authorizing it to remove its headquarters from Jefferson City, respondents contend that quo warranto is not a proper remedy to correct this error of construction.

The jurisdiction of this court to hear and determine original...